ex10_10.htm


    
      
        

      

      Exhibit
10.10

      


      Execution
Copy #2

      


       

      SECOND
AMENDING AGREEMENT

       

      THIS SECOND AMENDING AGREEMENT
is made as of the 25th day of
July, 2008 by and between Stephen Kilmer (the “Employee”), a resident of the
Province of Ontario, and OccuLogix, Inc. (the “Employer”), a corporation
incorporated under the laws of the State of Delaware, and having its executive
offices at 2600 Skymark Avenue, Building 9, Suite 201, Mississauga, Ontario, L4W
5B2.

       

      WHEREAS, the Employer and the
Employee entered into a termination agreement dated as of January 31, 2008 (the
“Termination Agreement”)
pursuant to which the Employee’s employment with the Employer, as its Vice
President, Investor & Public Affairs, was terminated;

       

      AND WHEREAS, capitalized terms
used in this Amending Agreement, but not otherwise defined, shall have the
respective meanings attributed to such terms in the Termination
Agreement;

       

      AND WHEREAS, the Employer and
the Employee entered into an amending agreement dated as of June 16, 2008 (the
“Amending Agreement”)
pursuant to which they agreed, among other things, to an amendment to the
earliest date on which the Severance Balance will become due and payable to the
Employee;

       

      AND WHEREAS, on May 20, 2008,
the Employer filed a preliminary proxy statement (the “Preliminary Proxy Statement”)
with the U.S. Securities and Exchange Commission (the “SEC”), which is currently the
subject of review by the SEC, proposing a number of transactions for the
approval of the Employer’s stockholders, including the approval and adoption of
a certain Securities Purchase Agreement pursuant to which the Employer has
agreed to sell shares of its common stock to the investors party thereto, and
the investors party thereto have agreed to purchase shares of the Employer’s
common stock, upon the terms and conditions provided for therein (the “Private
Placement”);

       

      AND WHEREAS, as part of the
SEC review process, the Employer will revise the Preliminary Proxy Statement to
have it reflect the current terms of the transactions proposed therein,
including the Private Placement;

       

      AND WHEREAS, the Employer has
advised the Employee that, upon clearing the SEC review process, the Employer
will file and mail the final version of the Preliminary Proxy Statement (the
“Proxy Statement”) and
convene a meeting of its stockholders (the “Stockholders
Meeting”);

       

      AND WHEREAS, the Employer has
advised the Employee that it will not be able to pay the Severance Balance on or
prior to September 1, 2008, and they mutually have agreed to extend the deadline
by which the Severance Balance must be paid;

       

      NOW, THEREFORE, in
consideration of the mutual promises and covenants contained in this Second
Amending Agreement and the Termination Agreement, as amended by the Amending
Agreement, and the receipt and sufficiency of which are hereby acknowledged by
the parties hereto, the parties hereto agree as follows:


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      
        	
                1.

              	
                AMENDMENT

              


      

       

      1.1           Notwithstanding
the first sentence of Section 3.2 of the Termination Agreement, as such Section
3.2 has been amended by the Amending Agreement, subject to Section 3.4 of the
Termination Agreement, on the earliest to occur of (i) October 31, 2008, (ii)
the termination of the Stockholders Meeting, provided that the requisite
approval of the Employer’s stockholders for the Private Placement or any of the
proposed transactions on which the Private Placement is conditioned, all as
described and provided for in the Proxy Statement, is not obtained at the
Stockholders Meeting, (iii) the closing of the Private Placement and (iv) a
Change of Control, the Employer shall pay the Employee, in a lump sum, the
Severance Balance.

       

      1.2           Section
4.2 of the Termination Agreement, as such Section 4.2 has been amended by the
Amending Agreement, is hereby deleted in its entirety and replaced with the
following Section 4.2:

       

      
        	
                 
      

              	
                4.2

              	
                The
      Employer shall use commercially reasonable efforts to obtain the Requisite
      Stockholder Approval, which covenant shall terminate and become null and
      void, and be of no more force or effect, upon the earlier to occur of (i)
      the date on which a meeting of the Employer’s stockholders may be convened
      to obtain the Requisite Stockholder Approval and (ii) October 31,
      2008.

              


      

       

      1.3           The
Termination Agreement, as amended by the Amending Agreement, remains in full
force and effect, unamended, other than as specifically amended by this Second
Amending Agreement.

       

      
        	
                2.

              	
                ACKNOWLEDGEMENT

              


      

       

      2.1           The
Employee hereby acknowledges that:

       

      
        	
                (a)

              	
                He
      has had sufficient time to review and consider this Second Amending
      Agreement thoroughly;

              


      

       

      
        	
                (b)

              	
                He
      has read and understands the terms of this Second Amending Agreement and
      his obligations hereunder;

              


      

       

      
        	
                (c)

              	
                He
      has been given an opportunity to obtain independent legal advice, or such
      other advice as he may desire, concerning the interpretation and effect of
      this Second Amending Agreement; and

              


      

       

      
        	
                (d)

              	
                He
      is entering this Second Amending Agreement voluntarily and without any
      pressure from the Employer.

              


      

       

      
        
           


        

        
          2

          
            

          

        

        
           


        

      


      
        	
                3.

              	
                MISCELLANEOUS

              


      

       

      3.1           The
headings in this Second Amending Agreement are included solely for convenience
of reference and shall not affect the construction or interpretation
hereof.

       

      3.2           The
parties hereto expressly agree that nothing in this Second Amending Agreement
shall be construed as an admission of liability.

       

      3.3           This
Second Amending Agreement shall be binding upon, and inure to the benefit of,
the parties hereto and their respective heirs, trustees, administrators,
successors and assigns.

       

      3.4           This
Second Amending Agreement and the Termination Agreement constitute the entire
agreement between the parties hereto pertaining to the subject matter of the
termination of the Employee’s employment with the Employer.  This
Second Amending Agreement, together with the Termination Agreement, supersede
and replace all prior agreements, if any, written or oral, with respect to such
subject matter and any rights which the Employee may have by reason of any such
prior agreements or by reason of the Employee’s employment with the
Employer.  There are no representations, warranties or agreements
between the parties hereto in connection with the subject matter of this Second
Amending Agreement, except as specifically set forth herein.  No
reliance is placed on any representation, opinion, advice or assertion of fact
made by the Employer or any of its officers, directors, agents or employees to
the Employee, except to the extent that the same has been reduced to writing and
included as a term of this Second Amending Agreement or the Termination
Agreement.  Accordingly, there shall be no liability, either in tort
or in contract, assessed in relation to any such representation, opinion, advice
or assertion of fact, except to the extent aforesaid.

       

      3.5           Each
of the provisions contained in this Second Amending Agreement is distinct and
severable, and a declaration of invalidity or unenforceability of any provision
or part thereof by a court of competent jurisdiction shall not affect the
validity or enforceability of any other provision hereof.

       

      3.6           This
Second Amending Agreement shall be governed by, and construed in accordance
with, the laws of the Province of Ontario and the federal laws of Canada
applicable therein.

       

      3.7           This
Second Amending Agreement may be signed in counterparts and delivered by
facsimile transmission or other electronic means, and each of such counterparts
shall constitute an original document, and such counterparts, taken together,
shall constitute one and the same instrument.

       

       

      [THE
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]

       

      
        
           


        

        
          3

          
            

          

        

        
           


        

      


      IN WITNESS WHEREOF, the
parties have executed this Second Amending Agreement as of the date set forth
above.

       

      
        	 
      	
                OCCULOGIX,
      INC.

              
	 	 
	 	 
	 
      	
                By:

              	
                /s/
      Suh Kim

              
	 
      	 
      	
                Suh
      Kim

              
	 
      	 
      	
                General
      Counsel

              


      

      


       

      
        	 
      	 
      	
                /s/
      Stephen Kilmer

              
	
                Signature
      of Witness

              	 
      	
                Stephen
      Kilmer

              
	 
      	 
      	 
      
	
                Name
      of Witness (please
      print)

              	 
      	 
      


      

      


4